As we consider and look at the various forces impacting the legal industry today, we see several ongoing trends which are increasingly demanding more attention from both inside and outside counsel. These forces are:
- The Digital Data Momentum
- Increasing Concern for Data Security
- The Growing Importance of Information Governance
- Increasing Globalization
Several studies by IDC, EMC and academics have predicted for years that we are facing an ever growing data deluge and content explosion. The prediction that the digital universe will be 44 zettabytes by 2020 means little to most of us. But if you state that 500 million tweets, ~300 billion emails, 65 billion Whatsapp messages are sent, and 3.5 billion Google searches are made every single day, many more of us would understand the astounding scale of the modern digital world. While only a small fraction of this data will flow into the purview of the legal profession, the impact is significant and most legal teams will admit this increase in content is a major challenge today.
The enterprise is also affected by this content explosion, and a recent eDiscovery Business Confidence survey identified increasing data volumes as THE primary concern for the coming future. In eDiscovery settings this also means that the information triage process is complicated since we are seeing not only significant increases in volume, but we are also seeing a greater variety of data types. The modern legal purview can include mobile data, voice and image data from various sources in addition to the data flowing in various enterprise IT systems.
While data security has not been a concern in the past, it is increasingly being seen as a key concern. At recent Davos conferences, cybersecurity and data privacy breakdowns are seen as the biggest threats to businesses, economies and societies around the world. According to the World Economic Forum (WEF), attacks against businesses have almost doubled in five years and the costs are rising too. “The world depends on digital infrastructure and people depend on their digital devices and what we’ve found is that these digital devices are under attack every single day,” said Brad Smith, president and chief legal officer, Microsoft. He added that attacks by organized criminal enterprises are becoming “more prolific and more sophisticated”, often “operating in jurisdictions that are more difficult to reach through the rule of law but use the internet to seek out victims literally everywhere.”
This rise of artificial intelligence and machine learning also means that global enterprises are interested in acquiring and harvesting data, wherever and whenever they can. Businesses are looking to acquire as much information as possible, about customers, interactions, brand opinions, and extracting insights that might give them an edge over the competition. Data-guzzling machine learning processes promise to amplify businesses’ ability to predict, personalize, and produce. However, some of the world’s largest consumer-facing companies have fallen victim to data breaches affecting hundreds of millions of customers. By all measures, the disruptive, data-centric forces of the so-called fourth industrial revolution appear to be outpacing the world’s ability to control them.
Legal professionals will need to play a larger role in managing these new risks, which can be devastating and cost millions in reparations and negative consequences. Increasingly these threats originate in foreign countries and sometimes even with support from foreign governments.
The modern global enterprise has a very different risk tolerance profile from similar companies, even as recently as 10 years ago. The “datafication” of the modern enterprise creates special challenges for both inside and outside counsel. Recent surveys by Gartner suggest that legal leaders have to start investing in digital skills and capabilities, reflecting the evolving role of the legal department as a strategic business partner.
“How legal departments build capabilities to govern risk within digital initiatives matters more than the legal advice they provide” says Christina Hertzler, Practice Vice President, Gartner.
To be digitally ready, legal departments must shift their approach to manage specific changes created by digitalization — more stakeholders, more speed and iteration, and the increased technical and collaborative nature of digital work, as well as handling new information-related risks. As organizations change the way they operate, generate revenue and create value for their customers, new compliance risks are emerging — presenting a challenge to compliance, which must identify, assess and mitigate risks like those tied to fundamentally new technologies (e.g., artificial intelligence) and processes.
There is a growing list of US companies already subjected to GDPR-related EU regulatory actions, including, Amazon, Apple, Facebook, Google, Netflix, Spotify and Twitter. Indeed, the French Data Protection Authority, CNIL, recently levied upon Google a record fine of approximately $57 million dollars for “lack of transparency, inadequate information and lack of valid consent regarding ads personalization.” The risks to US companies include providing proof of measures taken to protect, process, and transfer personal data from the EU to the US in connection with regulatory investigations or litigation. A report published in late February by DLA Piper cited data from the first eight months of GDPR enforcement, during which 91 fines were imposed. "We expect that 2019 will see more fines for tens and potentially even hundreds of millions of euros, as regulators deal with the backlog of GDPR data breach notifications," the report said. Taking meaningful steps now toward GDPR compliance is the best way for US companies doing business of any kind involving EU personal data—including those with no physical presence in the EU—to prepare for and mitigate their risk.
The penalties of non-compliance with regulatory polices continue to mount. Google was fined $170 million and asked to make changes to protect children’s privacy on YouTube, as regulators said the video site had knowingly and illegally harvested personal information from children and used it to profit by targeting them with ads. We can only expect that data privacy and compliance regulations will be taken more seriously in future and that legal teams will play an expanding role in ensuring this.
Facebook agreed to pay a record-breaking $5 billion fine as part of a settlement with the Federal Trade Commission, by far the largest penalty ever imposed on a company for violating consumers' privacy rights. Facebook also agreed to adopt new protections for the data users share on the social network and to measures that limit the power of CEO Mark Zuckerberg. Under the settlement, which concludes a year-long investigation prompted by the 2018 Cambridge Analytica scandal, the social networking giant must expand its privacy protections across Facebook itself, as well as on Instagram and WhatsApp. It must also adopt a corporate system of checks and balances to remain compliant, according to the FTC order. Facebook must also maintain a data security program, which includes protections of information such as users' phone numbers. The issue of data privacy and compliance will continue to build momentum as more people understand the extent of the data harvesting that is going on.
Taking meaningful steps now toward robust information governance and compliance for all kinds of privileged and confidential data will be necessary for the modern digital centric enterprise, and the modern legal department will need to be able to be an active partner and help the enterprise prepare for and mitigate their risk.
While these forces we have just described continue to build momentum, driven by increasing digitalization and the resultant ever expanding content flows, we also have an additional layer of complexity: language. The modern enterprise is now much more rapidly and naturally global, and thus now the modern legal department and outside counsel needs to be able to process content and information flows in multiple languages on a regular basis. The variety and volumes of multilingual content that legal professionals need to process and monitor can include any and all of the following:
- International contract negotiations and disputes
- Patent-infringement litigation
- Human Resource communications in global enterprises
- Customer communications
- GDPR Compliance related monitoring and analysis
- Cross-border regulatory compliance monitoring
- FCPA compliance monitoring
- Anti-trust related matters
The volumes of multilingual content can vary greatly, from very large volumes that might involve tens of thousands of documents in litigation related eDiscovery, to specialized monitoring of customer communications to ensure regulatory compliance, to smaller volumes of sensitive communications with global employees. Multilingual issues are especially present in cross-border partnerships and business dealings which are now increasingly common across many industries.
The AlixPartners Global Anticorruption Survey polled corporate counsel, legal, and compliance officers at companies based in the US, Europe and Asia in more than 20 major industries. The perceived corruption risks are elevated in Latin America and China, and Russia, Africa and the Middle East have emerged as regions of increasing concern. The survey found that 90% and 94% of companies with operations in Latin America and China, respectively, reported their industries are exposed to corruption risk. Of the 66% of respondents who said there are regions where it is impossible to avoid corrupt business practices, 31% said Russia is one such place and 27% cited Africa. The sheer volume of information companies must collect, translate, and analyze is the biggest obstacle to tackling corruption, according to 75% of survey respondents. These concerns surrounding management of data are expected to increase with increasing data privacy regulation such as the EU’s General Data Protection Regulation.
Thus, we see today that language translation production capabilities have become an imperative for the modern global enterprise, and that the needs for translation can range from rapid translation of millions of documents in an eDiscovery scenario, to very careful and specialized translation of critical contract and court-ready documentation. Given the volume, variety and velocity of the information that needs translation, legal professionals must consider a combination of technology and human services. Ideally, solving these kinds of varying translation challenges would be done by technologically informed professionals who solve complex and varied translation problems and who can adapt language technology and human expertise to the challenge at hand.
SDL’s translation capabilities range from handling large eDiscovery litigation related projects using a combination of MT enhanced with expert developed client-specific glossaries to improve the ability to identify relevant documents, no matter the language. The company provides around-the-clock, around-the-world service using state of the art linguistic AI tools to ensure greater accuracy, security, reduced costs and turnaround time. The company has a pool of certified and specialized translators across a number of jurisdictions and languages worldwide who have expertise and competence across a wide range of legal documents. The company is already working with 19 of the top 20 law firms in the world. The translation supply chain is often the hidden weak spot in an organization's data compliance. SDL’s secure translation supply chain gives you fully auditable, data custody of your translation processes and can be cascaded down through your outside counsel and consultants to create a replicable process across all of your legal service partners.
SDL’s secure translation supply chain solution provides an enterprise class, vendor agnostic, secure translation platform that allows you to combine regulatory compliance and translation best practice. Powered by SDL’s leading linguistic technologies your organization benefits from consistently applied terminology, your teams have full visibility of spend and leverage, and can easily flex your approved supplier pool to meet your needs. Securing the translation supply chain needn’t come at the cost of trusted suppliers, existing relationships or impact time to market.
To find out how SDL can support your multilingual data processing and translation strategy, please visit our legal pages, which will provide more insight on what we can do for you.